Q.  My husband suffered a stroke and is essentially paralyzed. I need him to sign a Power Of Attorney so that I can take care of our financial affairs. Is there any way to do this?

A.  Yes. Where a person has sufficient mental capacity to understand the nature of the document he or she proposes to sign, and where the only limitation is a physical inability to perform the act of signing, the law provides alternative methods of obtaining a legally valid signature.

Signature by Mark: If the person is unable to sign his or her full name, he might make a mark, such as an “X”, on the desired document. The signing must be witnessed by two disinterested witnesses, each of whom must also sign the document reciting that they watched the principal place his mark, and one of the witnesses must actually sign the principal’s name adjacent to his mark. If the individual does not have use of his arms, a pen might be placed between his teeth to enable him to mark the legal document. However, care must be taken so that the actual mark or “dot” on the paper is the act of the principal.

Signature by Amanuensis: Where a person is totally paralyzed and would not even be able to clench a pen in his teeth, but is able to speak and give instruction, there is another procedure called signing by amanuensis.  In legal parlance, an “amanuensis” is an assistant who copies or writes from the dictation of another.  Thus, if your husband is totally immobile, but if his mind is clear and he can speak or otherwise give direction, he could direct someone to sign his own name on a legal document. The actual signer should be a disinterested person, other than yourself, and the signing should occur in your husband’s presence.  It would be best if a notary were also present to notarize the document. Note:  most notaries will be unfamiliar with this procedure, and so you may wish to involve a knowledgeable attorney who can explain the process to the notary and supervise the signing.

In some situations, the paralyzed individual may have also lost the power of speech. Yet, if he retains some method of communication, such as by eye movements, the process of signing by amanuensis could be modified to accommodate that limitation. At a minimum, the attorney supervising the process would verify the particular eye movements signifying “yes” and “no”, review the desired legal document line by line to confirm the individual’s understanding, and invite him to give direction to a disinterested amanuensis to sign the document for him, using the principal’s own name. In this situation, it would be important to also have at least one witness verify the principal’s understanding and directive. It might also be helpful to video the signing process.

Blind Signer: If the principal is blind, but otherwise has the use of his limbs, I would recommend that the entire document be read to him, word for word,  and his understanding confirmed. A ruler or “cut out” template might be used to guide the placement of his hand so that he signs at the appropriate place on the document. I would also recommend that the entire process be videoed. A witness might also certify the principal’s understanding and/or a notarization arranged.

By Court Order If Incapacitated: If the principal also lacks mental capacity, then a petition could be made to the Superior Court for an order authorizing creation of a power of attorney pursuant to the Substituted Judgment Procedure in the California Probate Code, so named because the judge’s order would substitute for the principal’s consent and signature.

In your case, with patience and some thought, the need for your husband’s signature can probably be met.

References:  Estate of Austin Stephens, 28 Ca, 4th 665 (7/25/2002) [the California Supreme Court’s application of the amanuensis rule]; Signature by Mark (CA Civil Code § 14; CA Code of Civil Procedure §17].